Citation Nr: 0608470
Decision Date: 03/23/06 Archive Date: 04/04/06
DOCKET NO. 98-20 709 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUES
1. Entitlement to service connection for a genitourinary
disorder, claimed as a bladder problem/strain.
2. Entitlement to an initial (compensable) evaluation for
defective hearing in the right ear.
REPRESENTATION
Appellant represented by: Arkansas Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
Stephen F. Sylvester, Counsel
INTRODUCTION
The veteran served on active duty from September 1985 to
November 1996.
This case comes before the Board of Veterans' Appeals (Board)
on appeal of an October 1997 decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Baltimore,
Maryland. In that decision, the RO denied entitlement to
service connection for a bladder problem/strain, but granted
service connection for defective hearing in the right ear,
assigning a noncompensable evaluation effective from December
1, 1996, the date following the veteran's discharge from
service.
During the course of this appeal, the veteran was scheduled
for a Travel Board hearing on April 15, 2002, October 28,
2002, and April 24, 2003. Each time he contacted the RO and
asked for a postponement. The latter two requests cited his
need to obtain additional evidence. In correspondence of
early October 2003, the RO informed the veteran that his
scheduled hearing before a traveling section of the Board of
Veterans' Appeals had been rescheduled for late November
2003. In a Report of Contact dated in October 2003, it was
noted that the veteran again requested postponement because
he needed more time to prepare for the hearing. The veteran
called the RO again in February 2004 to state he was going to
get urological tests and asked when his videoconference was.
The Board remanded the claim in March 2004, advising the RO
to schedule the veteran for a videoconference hearing. A
videoconference hearing was scheduled in accordance with the
remand instructions, but the veteran did not report.
Although the veteran again requested a Travel Board hearing,
good cause to schedule such has not been shown. 38 C.F.R.
§ 20.702(c).
FINDINGS OF FACT
1. Bladder hypersensitivity/strain existed prior to service,
and was not caused or worsened by the veteran's period of
active military service.
2. The veteran currently exhibits no more than Level III
hearing in his service-connected right ear.
CONCLUSIONS OF LAW
1. A chronic genitourinary disorder was not incurred in nor
aggravated by active military service. 38 U.S.C.A. §§ 1110,
1131, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2005).
2. The criteria for an initial (compensable) evaluation for
service-connected defective hearing in the right ear have not
been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.85,
Diagnostic Code 6100 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act of 2000 (VCAA) Pub. L. No.
106-475, 114 Stat. 2096 (Nov. 9, 2000) [codified at
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126
(West 2002)] redefined VA's duty to assist a veteran in the
development of his claim. VA regulations for the
implementation of the VCAA were codified as amended at
38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2005).
The notice requirements of the VCAA require VA to notify a
veteran of any evidence that is necessary to substantiate his
claim, as well as the evidence VA will attempt to obtain and
which evidence he is responsible for providing. Quartuccio
v. Principi, 16 Vet. App. 183 (2002). The requirements apply
to all five elements of a service connection claim: veteran
status, existence of a disability, a connection between the
veteran's service and the disability, degree of disability,
and effective date of the disability. Dingess/Hartman v.
Nicholson, Nos. 01-1917 and 02-1506 (U.S. Vet. App. Mar. 3,
2006). Such notice must be provided to a claimant before the
initial unfavorable decision on the claim for VA benefits by
the agency of original jurisdiction (in this case, the RO).
Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).
However, the VCAA notice requirements may be satisfied if any
errors in the timing or content of such notice are not
prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet.
App. 103 (2005); see also Pelegrini, 18 Vet. App. at 121.
In this case, in correspondence of June 2001 and June 2004,
the RO provided notice to the veteran regarding what
information and evidence was needed to substantiate his
claims for service connection and an increased rating, as
well as what information and evidence must be submitted by
the veteran, what information and evidence would be obtained
by VA, and the need for the veteran to advise VA of or submit
any further evidence pertaining to his claims.
The veteran and his representative were also provided with a
copy of the appealed rating decision, as well as an October
1998 Statement of the Case (SOC), and October 2001 and May
2005 Supplemental Statements of the Case (SSOC). These
documents provided them with notice of the law and governing
regulations, as well as the reasons for the determinations
made regarding the veteran's claims. Moreover, both the
October 1998 SOC and May 2005 SSOC provided the veteran with
the entire contents of 38 C.F.R. § 4.85 (2005), that portion
of the Rating Schedule governing the evaluation of service
connected hearing impairment. By way of these documents,
they were specifically informed of the cumulative evidence
already provided to the VA, or obtained by VA on the
veteran's behalf. Therefore, the Board finds that the veteran
was notified and aware of the evidence needed to substantiate
his claims, the avenues through which he might obtain such
evidence, and the allocation of responsibilities between
himself and VA in obtaining such evidence.
The record also reflects that VA has made reasonable efforts
to obtain relevant records adequately identified by the
veteran. Specifically, the information and evidence that
have been associated with the claims file consists of the
veteran's service medical records and postservice medical
records and examination reports.
As discussed above, the VCAA provisions have been considered
and complied with. There is no indication that there is
additional evidence to obtain, there is no additional notice
that should be provided, and there has been a complete review
of all the evidence without prejudice to the appellant. As
such, there is no indication that there is any prejudice to
the appellant by the order of events in this case. See
Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Bernard v.
Brown, 4 Vet. App. 384 (1993). Moreover, as the Board
concludes below that the preponderance of the evidence is
against the appellant's claims for service connection and an
initial compensable rating, any question as to an appropriate
evaluation of the denied claim for service connection or
effective date on either issue is rendered moot. Any error
in the sequence of events or content of the notice is not
shown to have had any effect on the case, or to have caused
injury to the claimant. Thus, any such error is harmless and
does not prohibit consideration of this matter on the merits.
See Dingess, supra; Mayfield, supra; see also ATD Corp. v.
Lydall Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).
Factual Background
At the time of a service entrance examination in July 1985,
the veteran gave a history of cystitis for which he had been
catheterized. Also noted was a previous cystoscopy for
bladder infection. A physical examination conducted at that
time was essentially unremarkable, and no pertinent diagnosis
was noted.
A service clinical record dated in mid-September 1988 reveals
that the veteran was seen at that time for a problem
involving a "bump" on the ventral shaft of his penis.
According to the veteran, he felt a straining sensation
following urination, though his stream was normal. When
further questioned, the veteran gave a three-week history of
mild urinary urgency. The veteran denied any dysuria or
hematuria, and similarly denied any problems with fevers or
back pain. The veteran denied any history of urinary tract
infections or sexual dysfunction, and indicated that he had
experienced no urethral discharge. Also denied was any
history of renal stones, sexually transmitted diseases,
epididymitis, or prostatitis. On physical examination, there
was noted only a firm cystic-feeling mass on the ventral
surface of the midshaft of the veteran's penis. The clinical
assessment was small cystic mass on penis; sensation of
urgency.
On subsequent urological evaluation in mid-January 1989, the
veteran complained of a "bump" on the ventral aspect of his
penis which had remained unchanged since September 1988.
Also noted was a mild occasional burning on urination
associated with straining. When questioned, the veteran
denied any problems with frequency, urgency, hematuria, or
discharge. Similarly denied was any history of sexually
transmitted diseases. The clinical assessment was probable
sebaceous cyst.
Shortly thereafter, it was noted that the small cyst on the
ventral shaft of the veteran's penis was "gone." The
clinical assessment was resolved sebaceous cyst.
In a service clinical record of late November 1993, the
veteran gave a 1 to 2-year history of difficulty urinating,
in conjunction with a decreased stream. When questioned, the
veteran denied any problems with dysuria, hematuria, or
nocturia. Reportedly, at the age of 13, the veteran had
experienced similar symptoms, for which he had undergone
cystoscopy.
On physical examination, there was no evidence of any nodules
or asymmetry of the veteran's bladder. The clinical
assessment was abnormal voiding, with "many possible
etiologies."
Service clinical records dated in October 1994 revealed that
the veteran underwent various urological studies at that
time. In an entry of early October 1994, it was noted that
the veteran was being seen for "a desire to strain" (while
urinating) which had worsened over the course of a number of
years. Reportedly, one year earlier, the veteran had forced
out 740cc's of urine. The clinical assessment was further
evaluation.
On inservice urological evaluation in October 1994, there was
noted the presence of slight global erythema of the veteran's
bladder. Treatment was with medication.
In a service clinical record of January 1995, it was noted
that the veteran was being followed up for symptoms of
prostatitis. Reportedly, the veteran had just finished a
course of antibiotics with no change in symptoms. Noted at
the time was that a cytologic workup had been within normal
limits. The clinical assessment was prostadynia versus DSD.
At the time of a service separation examination in September
1996, the veteran complained of "bladder problems," stating
that, in order to completely void, he found it necessary to
strain "very hard." Reportedly, the veteran found it
difficult to endure long bus-rides, because his "bladder
problem" made it difficult for him to sit for long periods.
When further questioned, the veteran indicated that he had
been thoroughly tested, but no cure was found. Currently, it
was reportedly very difficult for the veteran to completely
void.
On physical examination, the veteran's genitourinary system
was entirely within normal limits. No pertinent diagnosis
was noted.
A VA audiometric examination conducted in April 1997 revealed
pure tone threshold levels, in decibels, as follows:
HERTZ
1000
2000
3000
4000
RIGHT
5
5
10
40
The pure tone average for the veteran's right ear was 15
decibels, with a speech discrimination score of 96 percent.
The diagnosis noted was mild high frequency sensorineural
hearing loss in the right ear.
On VA examination in April 1997, the veteran stated that he
had been seen in the urology clinic of the VA Medical Center
in Washington, D.C. for "bladder problems." Reportedly, when
voiding, the veteran felt as if he had not completely emptied
his bladder. This was followed by some straining, with the
veteran straining so hard that he often "lost some stool."
When questioned, the veteran indicated that this process
continued cyclically, and often kept him in the bathroom for
5 or 10 minutes. The pertinent diagnosis noted was for
suggestive behavioral modification therapy which might aid
the veteran's urinary problem in light of "normal urologic
findings."
At the time of a VA genitourinary examination in April 1997,
the veteran gave a 5-year history of progressive urinary
problems associated with difficulty voiding, a sensation of
incomplete bladder emptying, and accompanied intermittent
incontinence of stool.
Reportedly, the veteran had previously been evaluated via a
urodynamic cystoscopic examination, though the results of
that evaluation were currently unavailable. However, the
veteran did indicate that an ultrasound evaluation had shown
minimal post-void residual urine. Reportedly, cystoscopic
examination showed no evidence of any urethral obstruction.
According to the veteran, his bladder showed some whitish
spots, the exact nature of which was unclear.
Currently, the veteran complained of difficulty with
micturition, accompanied by prolonged and difficult episodes
of attempting to initiate voiding. According to the veteran,
these episodes were related to prolonged bus-rides required
by his military responsibilities.
On physical examination, it was noted that a rectal
evaluation showed a benign prostate, with normal sphincter
tone. The clinical impression was voiding dysfunction,
questionable bladder dysfunction. Additional diagnoses
consisted of bladder dysfunction, rule out neurogenic
bladder.
VA outpatient treatment records covering the period from
February to June 2004 show treatment during that time for
various urological problems.
On VA genitourinary examination in October 2004, the veteran
gave a past medical history of voiding dysfunction.
Reportedly, the veteran had initially been "worked up" at
Bethesda Naval Medical Center, with a final diagnosis of
prostadynia. According to the veteran, his main symptom was
a sensation of incomplete emptying despite actually having a
low volume TVR less than 50cc's. The veteran stated that his
symptoms started as a child when his father restricted his
voiding habits, in particular, during fishing trips. When
further questioned, the veteran indicated that his symptoms
worsened through secondary school, and that he was evaluated
by an urologist during his teenage years. Reportedly, the
veteran had at one point been told that his bladder was "too
big" for his age.
When further questioned, the veteran indicated that his
symptoms had improved during his college years only to return
during his service in the military. Reportedly, the veteran
was in the band during military service, and was forced to
endure long hours without a bathroom, which "aggravated" his
symptoms.
According to the veteran, he continued to experience problems
with low volume urgency. Apparently, the veteran had
undergone cystoscopic examination 10 years earlier, which
demonstrated white, patchy areas throughout his bladder,
resulting in a diagnosis of prostatitis and prostadynia. At
that time, the veteran was begun on medication, without much
help. When questioned, the veteran denied any history of
hematuria, with only minimal to no dysuria. Reportedly, the
veteran only very rarely experienced urgency incontinence.
According to the veteran, he underwent urodynamics in May
2004, at which time only about 100cc's or so of fluid was
able to be instilled, leading to a conclusion of low volume
hypersensitivity. Reportedly, the veteran's post-void
residual was about 50cc's.
On physical examination, the veteran exhibited a 25-gram,
smooth prostate gland, with only mild discomfort on
evaluation. A urinalysis in February 2004 was reportedly
negative, as was a urine culture conducted the following
month. Currently, the veteran's prostate-specific antigen
was 0.4, and his creatinine 1.3.
The clinical assessment was hypersensitivity. According to
the examiner, the etiology of the veteran's hypersensitivity
was certainly unclear. Based on the veteran's history, it
appeared to have started when he was a child, and was likely
the result of his father's direction regarding "when and if"
he could void. The veteran's long trips on a military bus
appeared to aggravate his situation, and might have been the
cause of his symptoms returning. However, it was recommended
that the veteran return in two months to see if prescribed
treatment had improved his condition.
On VA audiometric examination in October 2004, the veteran
complained of slight problems understanding speech.
Audiometric examination revealed pure tone air conduction
threshold levels, in decibels, as follows:
HERTZ
1000
2000
3000
4000
RIGHT
20
20
20
45
The pure tone average for the veteran's right ear was 26.25
decibels, with speech discrimination ability of 80 percent.
The pertinent diagnosis was noted hearing essentially within
normal limits, with a mild to moderate noise notch at 4,000
Hertz.
At the time of a VA hypertension examination in May 2005, it
was noted that the veteran's claims folder was available, and
had been reviewed. According to the examiner, the veteran
had previously been assessed as suffering from a
hypersensitive neurogenic bladder. The issue in question was
whether or not the veteran's "long bus trips" during service
had worsened his problem, which likely began during
childhood. According to the examiner, without having the
records of the actual time spent on each bus-ride, it was
difficult to assess whether those rides were the cause of the
veteran's problem, because the phrase "long bus trip" was
relatively subjective. However, inservice urodynamics
performed in October 1994 showed a voiding volume of 500cc's
on one occasion and 740cc's on another. In the opinion of
the examiner, if the veteran's symptoms had worsened during
his time in service, this would have been evident in his
urodynamics examination. However, the veteran's voided
volume was "more than normal," indicating to the examiner
that the veteran had an adequate functional bladder capacity.
Accordingly, the examiner was able to infer that the
veteran's hypersensitivity was not significant enough to
prevent him from having adequate storage in his bladder.
Under the circumstances, it was the opinion of the examiner
that, while the veteran's time in service certainly might not
have helped with his bladder regimen, it was certainly not
the cause of his hypersensitive bladder.
In a medical prescribing form dated in June 2005, the veteran
gave a history of an exploratory "bladder check" at the age
of 13.
Analysis
Service Connection
The veteran in this case seeks service connection for a
chronic genitourinary disability, claimed as a bladder
problem/strain.
In that regard, service connection may be established for
disability resulting from disease or injury incurred in or
aggravated by active military service. 38 U.S.C.A. §§ 1110,
1131 (West 2002). Service connection may also be granted for
any disease diagnosed after discharge, when all of the
evidence establishes that the disease was incurred in
service. 38 C.F.R. § 3.303 (2005).
In order to establish service connection for a claimed
disorder, there must be (1) medical evidence of a current
disability; (2) medical, or in certain circumstances, lay
evidence of incurrence or aggravation of a disease or injury
during service; and (3) medical evidence of a nexus between
the claimed inservice disease or injury and the current
disability. Hickson v. West, 12 Vet. App. 247, 253 (1999).
A preexisting injury or disease will be considered to have
been aggravated by active military service or air service
where there is an increase in disability during such service,
unless there is a specific finding that the increase in
disability is due to the natural progress of the disease.
Clear and unmistakable evidence (obvious or manifest) is
required to rebut the presumption of aggravation where the
preservice disability underwent an increase in severity
during service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. §
3.306 (2005).
Evidence of the veteran being asymptomatic on entry into
service, with an exacerbation of symptoms during service,
does not constitute evidence of aggravation. Green v.
Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder
becomes worse during service and then improves due to in-
service treatment to the point that it was no more disabling
than it was at entrance into service, the disorder has not
been aggravated by service. Verdon v. Brown, 8 Vet. App. 529
(1996).
In present case, service medical records fail to demonstrate
the existence of a chronic genitourinary disability. While
on various occasions in service, including at service
entrance, the veteran gave a history of certain urinary
problems as a child, the results of inservice testing
remained relatively inconclusive. Significantly, while at
the time of a service separation examination in September
1996, the veteran gave a history of difficulty "completely
voiding," he freely admitted that "thorough testing" had
failed to find any "cure." Further, that separation
examination was entirely negative for evidence of a
genitourinary disorder of any kind.
The Board acknowledges that, at the time of a VA medical
examination in April 1997, the veteran voiced various urinary
complaints, including the sensation that he had not
completely emptied his bladder. However, that examination
was negative for evidence of chronic urologic pathology.
Accordingly, it was recommended that the veteran undergo
behavioral modification therapy "in light of normal urologic
findings."
The veteran argues that, during service, he was forced to
endure long bus rides without adequate bathroom facilities,
resulting in an "aggravation" of his urinary problems. In
that regard, following a VA genitourinary examination in
October 2004, it was the opinion of the examiner that the
veteran's urinary "hypersensitivity" appeared to have started
during his childhood, as the result of his father's strict
direction on "when and if" he could void. The examiner was
further of the opinion that the veteran's long trips on a
military bus "seemed" to aggravate his situation and "might"
have been the cause of his symptoms returning. Nonetheless,
the examiner felt that the veteran should return in two
months for further evaluation. Significantly, following a
full review of the veteran's claims folder in a May 2005
addendum to the October 2004 examination, another VA examiner
wrote that, given the veteran's relatively normal urodynamic
studies in service, the veteran's symptomatology most likely
had not worsened during his period of active military
service. In any case, the veteran's hypersensitivity was not
significant enough to prevent him from having adequate
storage in his bladder.
Based on the aforementioned, the Board finds that the
evidence clearly and unmistakably establishes that the
veteran's genitourinary complaints existed prior to service.
Although the veteran reported a prior cystoscopy and
catheterization on his entrance examination, a genitourinary
disability was not identified on entrance physical
examination. However, the veteran's primary symptom has
continuously been the "sensation" of his bladder not
completely emptying, with no objective cause for such being
identified. Thus, under the unique circumstances of this
case, where the complaints prior to and during service are
purely subjective, with no objective findings during service
found, the veteran's statements as to the onset being in
childhood is competent.
Moreover, as noted above, the October 2004 VA examiner found
the origin of the claimed disorder as likely arising from the
veteran's experiences in childhood. In a May 2005 addendum,
the VA examiner opined that the veteran's bladder
hypersensitivity was not caused by service, that he had
adequate bladder storage during service, and that based on
the urodynamic results in service, his hypersensitivity was
not worsened thereby. The Board finds this opinion to be
most probative as it included a review of the entire claims
file.
Accordingly, the preponderance of the evidence is against the
claim for service connection for a genitourinary disorder,
and the appeal is denied.
Increased Rating
Turning to the issue of an increased rating for service-
connected hearing loss in the right ear, the Board notes that
disability evaluations, in general, are intended to
compensate for the average impairment of earning capacity
resulting from a service-connected disability. They are
primarily determined by comparing objective clinical findings
with the criteria set forth in the Rating Schedule.
38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. Part 4 (2005).
In the presence case, in a rating decision of October 1997,
the RO granted service connection (and a noncompensable
evaluation) for right ear hearing loss, effective from
December 1, 1996, the date following the veteran's discharge
from service. In Fenderson v. West, 12 Vet. App. 119 (1999),
it was held that evidence to be considered in an appeal of an
initial assignment of a rating disability was not limited to
that reflecting the then current severity of the disorder.
In Fenderson, the Court also discussed the concept of
"staged" ratings, finding that, in cases where an initially
assigned disability evaluation has been disagreed with, it
was possible for a veteran to be awarded separate percentage
evaluations for separate periods based on the facts found
during the appeal.
The Board observes, effective June 10, 1999, the schedular
criteria for the evaluation of service-connected ear diseases
and, specifically, hearing loss, underwent revision. Where a
law or regulation changes after a claim has been filed or
reopened, but before the administrative or judicial appeals
process has been concluded, the version of the law or
regulation most favorable to the appellant must apply unless
Congress or the Secretary provides otherwise. See VAOPGCPREC
3-2000 (April 10, 2000). However, in the case at hand, the
disability in question (hearing loss) does not fall within
those sections of the Rating Schedule which underwent
substantive change. Accordingly, for all intents and
purposes, the appropriate evaluation to be assigned the
veteran's service-connected right ear hearing loss may be
determined under either the "old" or "amended" schedular
criteria.
In that regard, evaluations of unilateral defective hearing
range from noncompensable to 10 percent based on organic
impairment of hearing acuity
as measured by the results of controlled speech
discrimination tests together with the average hearing
threshold level as measured by pure tone audiometry tests in
the frequencies 1,000, 2,000, 3,000, and 4000 Hertz. To
evaluate the degree of disability from defective hearing, the
Rating Schedule establishes 11 auditory acuity levels
designated Level I for essentially normal acuity through
Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic
Codes 6100 to 6110 (effective prior to June 10, 1999);
38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (effective June
10, 1999).
If impaired hearing is service connected in only one ear, in
order to determine the percentage evaluation from Table VII
(of 38 C.F.R. § 4.85), the nonservice-connected ear will be
assigned a Roman Numeral designation for hearing impairment
of I, subject to the provisions of 38 C.F.R. § 3.383 (2005).
38 C.F.R.
§ 4.85(f) (2005).
In the present case, on VA audiometric examination in April
1997, the veteran exhibited Level I hearing in his service-
connected right ear. Such findings are consistent with the
noncompensable evaluation presently in effect. While on more
recent audiometric examination in October 2004, the veteran
exhibited Level III hearing in his right ear, those findings
are nonetheless commensurate with no more than a
noncompensable evaluation. As noted above, where only one
ear is service connected, the nonservice-connected ear is
assigned Level I hearing for rating purposes. Under the
circumstances, and absent demonstrated clinical evidence of a
more severe hearing loss, the noncompensable evaluation
currently in effect for the veteran's service-connected right
ear hearing loss is appropriate, and an increased rating is
not warranted. 38 C.F.R. § 4.85, Diagnostic Code 6100
(2005).
In reaching the conclusions above the Board has considered
the applicability of the benefit of the doubt doctrine.
However, as the preponderance of the evidence is against the
veteran's claim, that doctrine is not applicable in the
instant appeal. See 38 U.S.C.A. § 5107(b); Gilbert v.
Derwinski, 1 Vet. App. 49, 55-57 (1991).
(CONTINUED ON NEXT PAGE)
ORDER
Service connection for a genitourinary disorder, claimed as a
bladder problem/strain, is denied.
An initial (compensable) evaluation for defective hearing in
the right ear is denied.
____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs